Citation Nr: 1318972 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-06 286 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to a rating in excess of 10 percent for the service-connected residuals of mandibular osteotomy. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active service from January 1979 to November 1979. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the RO. The Veteran requested a hearing at the RO before a Veterans Law Judge (VLJ), as indicated by the February 2009 VA Form 9. He was notified of the date of a hearing scheduled in March 2012. The Veteran, however, failed to report for the hearing, and thus the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). In September 2012, the Board remanded this matter for additional development. The matter has been returned to the Board for additional appellate consideration. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issue of service connection for tinnitus, to include as secondary to the residuals of mandibular osteotomy has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and refers the matter to the AOJ for appropriate action. FINDING OF FACT The service-connected residuals of mandibular osteotomy is shown to be productive of a disability picture manifested by a functional loss due to pain that more nearly approximates that of temporomandibular articulation limited motion of the inter-incisal range of 21 to 30 mm; limited motion of the inter-incisal range of 11 to 20 mm is not demonstrated. CONCLUSION OF LAW The criteria for the assignment of a rating of 20 percent, but not higher for the service-connected residuals of mandibular osteotomy have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.150 including Diagnostic Code 9905 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2011). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in an August 2007 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluation and effective dates were assigned, and the type of evidence which impacted those determinations. The letter did not contain an explanation of the general rating criteria relevant to service-connected mandibular disability. However, the September 2008 Statement of the Case (SOC) set forth applicable criteria for higher ratings for the mandibular disability. After issuance of the September 2008 SOC, and opportunity for the Veteran to respond, the March 2009 Supplemental SOC (SSOC) reflects readjudication of the claim. More recently, the December 2012 SSOC reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file (including the Virtual VA electronic claims) include VA treatment records and examination reports. The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any defect in the sequence of events or content of the notices is not shown to have caused injury to the Veteran. Therefore, any such defect is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Laws and Regulations Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2010); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The rating for the Veteran's residuals of mandibular osteotomy has been analogously assigned pursuant to Diagnostic Code 9905. See 38 C.F.R. § 4.150. Under the formula, a 10 percent evaluation is warranted for limited motion of the inter-incisal range of 31 to 40 mm. A 10 percent evaluation is also warranted for limited motion of range of lateral excursion of 0 to 4 mm. A 20 percent evaluation is in order for limited motion of inter-incisal range of 21 to 30 mm. A 30 percent evaluation is in order for limited motion of inter-incisal range of 11 to 20 mm. A 40 percent evaluation is warranted for limited motion of inter-incisal range of 0 to 10 mm. Ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. Analysis In this case, the Board finds that the service-connected disability picture manifested by the residuals of the mandibular osteotomy more nearly approximates that of limited motion of the inter-incisal range to between 21 to 30mm. The August 2007 report of VA examination reflects that the Veteran could not open his mouth wide. It was difficult for him to chew his food, and he reported experiencing pain when he yawned, laughed or coughed. Maximum opening of the inter-incisal range of motion was 40 mm. He also had left and right lateral excursion to 5 mm, respectively. The examination report documented that the February 2007 MRI showed that the left condylar head had a mildly truncated appearance with flattened and erosive changes. There was thinning of the disc. In closed mouth position, there was anterior subluxation of the disc relative to the condylar head. With translation, there was evidence of recapture. Subsequent VA outpatient treatment records documented that the treatment the Veteran received for his various medical complaints, including the residuals of mandibular osteotomy. An August 2012 Dentistry note reported that the Veteran was seen for a one-week follow-up status post surgical procedure. He had a maximum opening of the mouth of approximately 30 mm without deviation. However, a noticeable click or popping sound was heard when he opened his mouth. The Veteran was encouraged to perform the exercises that were taught to him for increasing maximum mouth opening. A report of an October 2012 VA examination noted the Veteran's complaint of pain (rated 8 out of 10) when he opened his mouth to shout or eat hard foods. He experienced clicking and pain that limited the kind of food that he could eat. He had to cut his food into tiny pieces like baby food. The range of motion for lateral excursion was from 0 to 4 mm. Objective evidence of painful motion began at 0 to 4 mm. The range of motion for opening his mouth (measured by inter-incisal distance) was 31 to 40 mm (maximum opening was 38 mm with audible clicking). There was evidence of painful motion that began at 21 to 30 mm. The Veteran was able to perform repetitive testing without loss of range of motion after three repetitions (i.e., the range of motion for lateral excursion remained 0 to 4 mm; range of motion for opening his mouth remained 31 to 40 mm). However, he did experience functional loss or impairment in that he had less movement than normal, weakened movement, incoordination and impaired ability to execute skilled movements smoothly and pain on movement. The Veteran also demonstrated localized tenderness or pain on palpation and clicking or crepitation of the joints or soft tissues of the TMJ on the left. The examination report documented a May 2012 MRI report that showed stable degenerative changes at the left temporomandibular joint with thinned, mild anteriorly displaced left meniscus with evidence of recapture. The examiner concluded that there was no significant impact from the Veteran's service-connected jaw disorder on his activities of daily living, including his ability to obtain and maintain employment. The jaw disability did not cause marked interference with employment or require frequent periods of hospitalization. Except for pain and clicking on chewing harder foods and even shouting, there were no significant functional impairments due to his jaw condition. The Board finds that the medical and lay evidence in this case establishes that the service-connected residuals of the mandibular osteotomy warrants an increased rating of 20 percent rating, but not higher. To the extent that the Veteran reports having painful motion, the most recent examination (October 2012) documents painful motion beginning between 21 to 30 mm. While a greater range of movement is suggested, there was clear evidence weakened and impaired function. Moreover, a recent MRI showed degenerative changes at the left temporomandibular joint. However, limited or painful motion of the inter-incisal range to between 11 to 20 mm is not demonstrated as to warrant a higher rating at any time. Additionally, a separate rating for limited motion of range of lateral excursion is not warranted because ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. On these facts, the Board determines that a rating of 20 percent, but no more for the service-connected residuals of mandibular osteotomy is assigned for the period of the appeal. The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extraschedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the level of disability and symptomatology, and is found inadequate, the RO must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as 'governing norms' (including marked interference with employment and frequent hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. 111. In this case, the Board finds that schedular criteria reasonably address and compensate the Veteran for the service-connected residuals of mandibular osteotomy in this case. An unusual or exceptional disability picture outside the scope of the established rating standards is not demonstrated. Accordingly, the threshold requirements for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. ORDER An increased, 20 percent rating, but no more, for the service-connected residuals of mandibular osteotomy is granted, subject to the regulations controlling disbursement of VA monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs